08-003786 Sunl Group, Inc., And Auto Stop, Inc., D/B/A Motorsports Depot vs. Mobility Tech, Inc., D/B/A Charlie`s Scooter Depot Status: Closed Recommended Order on Friday, February 20, 2009.

Summary: Recommend denying establishment of Petitioners` proposed franchise dealership; neither party appeared for final hearing.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUNL GROUP, INC., AND AUTO )

STOP, INC., d/b/a MOTORSPORTS )

DEPOT, )

)

Petitioners, )

)

vs. ) Case No. 08-3786

)

MOBILITY TECH, INC., d/b/a )

CHARLIE'S SCOOTER DEPOT, )

)

Respondent. )

)

RECOMMENDED ORDER

On February 3, 2009, an administrative hearing in this case

was scheduled to be held in Tampa, Florida, before Jeff B.

Clark, Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioners: No appearance

For Respondent: No appearance

STATEMENT OF THE ISSUE

The issue is whether Petitioners are entitled to a motor vehicle dealership that is proposed to be located in Hillsborough County, Florida.

PRELIMINARY STATEMENT

On July 8, 2008, Petitioners, SunL Group, Inc., and Auto

Stop, Inc., d/b/a Motorsports Depot, published a Notice of

Publication for a New Point Franchise Motor Vehicle Dealer in a

County of More than 300,000 Population in the Florida

Administrative Weekly . Respondent, Mobility tech, Inc., d/b/a

Charlie's Scooter Depot, on July 23, 2008, timely filed a

protest with the Department of Highway Safety and Motor

Vehicles. By letter dated July 31, 2008, the Department of

Highway Safety and Motor Vehicles referred the matter to the

Division of Administrative Hearings to assign an Administrative

Law Judge to conduct a hearing "for the sole purpose of

determining the propriety of the protest regarding issues

specifically within the purview of Sections 320.642 and 320.699,

Florida Statutes."

On August 12, 2008, a Notice of Hearing was mailed to all

parties scheduling the final hearing for February 3, 2009, in

Hillsborough County, Florida. No party responded to the Order

of Pre-hearing Instructions mailed the same day. The hearing

was convened as scheduled. No party appeared.

The hearing was not transcribed as no testimony was

presented.

All statutory references are to Florida Statutes (2008),

unless otherwise noted.

FINDINGS OF FACT

The following Findings of Fact are based on the documents

which were forwarded to the Division of Administrative Hearings

by the Department of Highway Safety and Motor Vehicles in this

case: Notice of Publication for a New Point Franchise Motor

Vehicle Dealer in a County of More than 300,000 Population,

Florida Administrative Weekly , Volume 34, Number 29, July 18,

2008; and protest letter dated July 23, 2008, from Carlos A.

Urbizi to Nalini Vinayak, Department of Highway Safety and Motor

Vehicles.

1. Respondent is an existing franchised dealer of Shanghai

Shenke Motorcycles.

2. Petitioners have proposed the establishment of a new

dealership to sell the same line-make of motorcycles as those

sold by Respondent.

3. Respondent's dealership is located at 5702 North

Florida Avenue, Tampa, Hillsborough County, Florida.

4. Petitioners' proposed dealership would be located at

17630 U.S. 41 North, Lutz, Hillsborough County, Florida 33549.

5. The proposed dealership is within a 12.5-mile radius of

Respondent's dealership.

6. Respondent has standing to protest the establishment of

the proposed dealership.

7. No evidence was received showing that Respondent was

"not providing adequate representation" of the same line-make

motor vehicles in the community or territory.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

9. The Department of Highway Safety and Motor Vehicles

is the agency responsible for regulating the licensing and

franchising of motor vehicle dealers. §§ 320.60 through 320.70,

Fla. Stat.

10. Subsection 320.642(1), Florida Statutes, requires a

motor vehicle dealer who proposes to establish an additional

motor vehicle dealership within an area already represented by

the same line-make vehicle to give written notice to the

Department of Highway Safety and Motor Vehicles of its intent to

establish a new franchise. The statute also provides that any

affected dealership may protest the establishment of a new

franchise in its territory.

11. Subsection 320.642(2), Florida Statutes, establishes

the standards of review to determine if establishment of a new,

competing motor vehicle franchise should be granted. Subsection

320.642(2)(a), Florida Statutes, provides in relevant part:

An application for a motor vehicle dealer

license in any community or territory shall

be denied when:

1. A timely protest is filed by a

presently existing franchised motor vehicle

dealer with standing to protest as defined

in subsection (3); and

2. The licensee fails to show that the

existing franchised dealer or dealers who

register new motor vehicle retail sales or

retail leases of the same line-make in the

community or territory of the proposed

dealership are not providing adequate

representation of such line-make motor

vehicles in such community or territory.

The burden of proof in establishing

inadequate representation shall be on the

licensee.

12. Pursuant to Subsection 320.642(3)(b)1., Florida

Statutes, "if the proposed additional . . . motor vehicle dealer

is to be located in a county with a population of more than

300,000," as in the instant case, then any existing motor

vehicle dealer of the same line-make whose licensed franchise

location is within a radius of 12.5 miles of the proposed

additional dealer has standing to file a protest within the

meaning of Subsection 320.642(2)(a)1., Florida Statutes.

13. Subsection 320.642(8), Florida Statutes, states:

The department shall not be obligated to

determine the accuracy of any distance

asserted by any party in a notice submitted

to it. Any dispute concerning a distance

measurement asserted by a party shall be

resolved by a hearing conducted in

accordance with ss. 120.569 and 120.57.

14. Respondent's assertion in its protest letter that the

proposed franchise is within 12.5 miles of the existing

franchise location is not challenged. Respondent is an existing

motor vehicle dealer who has standing to file a protest of the

proposed new dealership in this case.

15. The burden is, therefore, on Petitioners to prove that

there is "inadequate representation" in the community or

territory of the proposed new dealership according to the

criteria set forth in Subsection 320.642(2)(b), Florida

Statutes.

16. Petitioners made no appearance and presented no

evidence at the final hearing. Petitioners failed to meet their

burden of proof.

17. The approval sought by Petitioners must, therefore, be

denied.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department of Highway Safety and Motor

Vehicles enter a final order denying the establishment of

Petitioners' proposed franchise dealership.

DONE AND ENTERED this 20th day of February, 2009, in

Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of February, 2009.

COPIES FURNISHED :

Carl A. Ford, Director

Division of Motor Vehicles

Department of Highway Safety and

Motor Vehicles

Neil Kirkman Building, Room B-439

2900 Apalachee Parkway

Tallahassee, Florida 32399-0500

Robin Lotane, General Counsel

Department of Highway Safety and

Motor Vehicles

Neil Kirkman Building, Room B-439

2900 Apalachee Parkway

Tallahassee, Florida 32399-0500

Michael James Alderman, Esquire

Department of Highway Safety and

Motor Vehicles

Neil Kirkman Building, Room A-432

2900 Apalachee Parkway

Tallahassee, Florida 32344

Robert L. Sardegna

Auto Shop, Inc., d/b/a Motorsports Depot

17630 US 41 North

Lutz, Florida 33549

Carlos Urbizu

Mobility Tech, Inc., d/b/a Charlie's

Scooter Depot

5720 North Florida Avenue, Unit 2

Tampa, Florida 33604

Mei Zhou

SunL Group, Inc.

8551 Ester Boulevard

Irving, Texas 75063

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.